THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

DIRECTIVE (EU) 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019

on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 53(1) and Articles 62 and 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (

),

Having regard to the opinion of the Committee of the Regions (

),

Acting in accordance with the ordinary legislative procedure (

),

Whereas:

(1) The Treaty on European Union (TEU) provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Further harmonisation of the laws of the Member States on copyright and related rights should contribute to the achievement of those objectives.

(2) The directives that have been adopted in the area of copyright and related rights contribute to the functioning of the internal market, provide for a high level of protection for rightholders, facilitate the clearance of rights, and create a framework in which the exploitation of works and other protected subject matter can take place. That harmonised legal framework contributes to the proper functioning of the internal market, and stimulates innovation, creativity, investment and production of new content, also in the digital environment, in order to avoid the fragmentation of the internal market. The protection provided by that legal framework also contributes to the Union's objective of respecting and promoting cultural diversity, while at the same time bringing European common cultural heritage to the fore. Article 167(4) of the Treaty on the Functioning of the European Union requires the Union to take cultural aspects into account in its action.

(3) Rapid technological developments continue to transform the way works and other subject matter are created, produced, distributed and exploited. New business models and new actors continue to emerge. Relevant legislation needs to be future-proof so as not to restrict technological development. The objectives and the principles laid down by the Union copyright framework remain sound. However, legal uncertainty remains, for both rightholders and users, as regards certain uses, including cross-border uses, of works and other subject matter in the digital environment. As stated in the Commission Communication of 9 December 2015 entitled

‘Towards a modern, more European copyright framework’, in some areas it is necessary to adapt and supplement the existing Union copyright framework, while keeping a high level of protection of copyright and related rights. This Directive provides for rules to adapt certain exceptions and limitations to copyright and related rights to digital and cross-border environments, as well as for measures to facilitate certain licensing practices, in particu­

lar, but not only, as regards the dissemination of out-of-commerce works and other subject matter and the online availability of audiovisual works on video-on-demand platforms, with a view to ensuring wider access to content.

It also contains rules to facilitate the use of content in the public domain. In order to achieve a well-functioning and fair marketplace for copyright, there should also be rules on rights in publications, on the use of works (

) OJ C 125, 21.4.2017, p. 27.

(

) OJ C 207, 30.6.2017, p. 80.

(

) Position of the European Parliament of 26 March 2019 (not yet published in the Official Journal) and decision of the Council of 15 April

2019.

or other subject matter by online service providers storing and giving access to user-uploaded content, on the transparency of authors' and performers' contracts, on authors' and performers' remuneration, as well as a mechanism for the revocation of rights that authors and performers have transferred on an exclusive basis.

(4) This Directive is based upon, and complements, the rules laid down in the directives currently in force in this area, in particular Directives 96/9/EC (

), 2000/31/EC (

), 2001/29/EC (

), 2006/115/EC (

), 2009/24/EC (

), 2012/28/EU (

) and 2014/26/EU (

) of the European Parliament and of the Council.

(5) In the fields of research, innovation, education and preservation of cultural heritage, digital technologies permit new types of uses that are not clearly covered by the existing Union rules on exceptions and limitations.

In addition, the optional nature of exceptions and limitations provided for in Directives 96/9/EC, 2001/29/EC and 2009/24/EC in those fields could negatively impact the functioning of the internal market. This is particularly relevant as regards cross-border uses, which are becoming increasingly important in the digital environment. Therefore, the existing exceptions and limitations in Union law that are relevant for scientific research, innovation, teaching and preservation of cultural heritage should be reassessed in the light of those new uses. Mandatory exceptions or limitations for uses of text and data mining technologies, illustration for teaching in the digital environment and for preservation of cultural heritage should be introduced. The existing exceptions and limitations in Union law should continue to apply, including to text and data mining, education, and preservation activities, as long as they do not limit the scope of the mandatory exceptions or limitations provided for in this Directive, which need to be implemented by Member States in their national law. Directives 96/9/EC and 2001/29/EC should, therefore, be amended.

(6) The exceptions and limitations provided for in this Directive seek to achieve a fair balance between the rights and interests of authors and other rightholders, on the one hand, and of users on the other. They can be applied only in certain special cases that do not conflict with the normal exploitation of the works or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholders.

(7) The protection of technological measures established in Directive 2001/29/EC remains essential to ensure the protection and the effective exercise of the rights granted to authors and to other rightholders under Union law.

Such protection should be maintained while ensuring that the use of technological measures does not prevent the enjoyment of the exceptions and limitations provided for in this Directive. Rightholders should have the opportunity to ensure that through voluntary measures. They should remain free to choose the appropriate means of enabling the beneficiaries of the exceptions and limitations provided for in this Directive to benefit from them. In the absence of voluntary measures, Member States should take appropriate measures in accordance with the first subparagraph of Article 6(4) of Directive 2001/29/EC, including where works and other subject matter are made available to the public through on-demand services.

(8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or data, generally known as text and data mining. Text and data mining makes the processing of large amounts of information with a view to gaining new knowledge and discovering new trends possible. Text and data mining technologies are prevalent across the digital economy; however, there is widespread acknow­

ledgment that text and data mining can, in particular, benefit the research community and, in so doing, support (

) Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77,

27.3.1996, p. 20).

(

) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (OJ L 178, 17.7.2000, p. 1).

(

) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10).

(

) Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ L 376, 27.12.2006, p. 28).

(

) Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (OJ L 111, 5.5.2009, p. 16).

(

) Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (OJ L 299, 27.10.2012, p. 5).

(

) Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and

related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ L 84, 20.3.2014, p. 72).

innovation. Such technologies benefit universities and other research organisations, as well as cultural heritage institutions since they could also carry out research in the context of their main activities. However, in the Union, such organisations and institutions are confronted with legal uncertainty as to the extent to which they can perform text and data mining of content. In certain instances, text and data mining can involve acts protected by copyright, by the sui generis database right or by both, in particular, the reproduction of works or other subject matter, the extraction of contents from a database or both which occur for example when the data are normalised in the process of text and data mining. Where no exception or limitation applies, an authorisation to undertake such acts is required from rightholders.

(9) Text and data mining can also be carried out in relation to mere facts or data that are not protected by copyright, and in such instances no authorisation is required under copyright law. There can also be instances of text and data mining that do not involve acts of reproduction or where the reproductions made fall under the mandatory exception for temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC, which should continue to apply to text and data mining techniques that do not involve the making of copies beyond the scope of that exception.

(10) Union law provides for certain exceptions and limitations covering uses for scientific research purposes which may apply to acts of text and data mining. However, those exceptions and limitations are optional and not fully adapted to the use of technologies in scientific research. Moreover, where researchers have lawful access to content, for example through subscriptions to publications or open access licences, the terms of the licences could exclude text and data mining. As research is increasingly carried out with the assistance of digital technology, there is a risk that the Union's competitive position as a research area will suffer, unless steps are taken to address the legal uncertainty concerning text and data mining.

(11) The legal uncertainty concerning text and data mining should be addressed by providing for a mandatory exception for universities and other research organisations, as well as for cultural heritage institutions, to the exclusive right of reproduction and to the right to prevent extraction from a database. In line with the existing Union research policy, which encourages universities and research institutes to collaborate with the private sector, research organisations should also benefit from such an exception when their research activities are carried out in the framework of public-private partnerships. While research organisations and cultural heritage institutions should continue to be the beneficiaries of that exception, they should also be able to rely on their private partners for carrying out text and data mining, including by using their technological tools.

(12) Research organisations across the Union encompass a wide variety of entities the primary goal of which is to conduct scientific research or to do so together with the provision of educational services. The term ‘scientific research’ within the meaning of this Directive should be understood to cover both the natural sciences and the human sciences. Due to the diversity of such entities, it is important to have a common understanding of research organisations. They should for example cover, in addition to universities or other higher education institutions and their libraries, also entities such as research institutes and hospitals that carry out research.

Despite different legal forms and structures, research organisations in the Member States generally have in common that they act either on a not-for-profit basis or in the context of a public-interest mission recognised by the State. Such a public-interest mission could, for example, be reflected through public funding or through provisions in national laws or public contracts. Conversely, organisations upon which commercial undertakings have a decisive influence allowing such undertakings to exercise control because of structural situations, such as through their quality of shareholder or member, which could result in preferential access to the results of the research, should not be considered research organisations for the purposes of this Directive.

(13) Cultural heritage institutions should be understood as covering publicly accessible libraries and museums

regardless of the type of works or other subject matter that they hold in their permanent collections, as well as

archives, film or audio heritage institutions. They should also be understood to include, inter alia, national

libraries and national archives, and, as far as their archives and publicly accessible libraries are concerned,

educational establishments, research organisations and public sector broadcasting organisations.

(14) Research organisations and cultural heritage institutions, including the persons attached thereto, should be covered by the text and data mining exception with regard to content to which they have lawful access. Lawful access should be understood as covering access to content based on an open access policy or through contractual arrangements between rightholders and research organisations or cultural heritage institutions, such as subscriptions, or through other lawful means. For instance, in the case of subscriptions taken by research organ­

isations or cultural heritage institutions, the persons attached thereto and covered by those subscriptions should be deemed to have lawful access. Lawful access should also cover access to content that is freely available online.

(15) Research organisations and cultural heritage institutions could in certain cases, for example for subsequent verification of scientific research results, need to retain copies made under the exception for the purposes of carrying out text and data mining. In such cases, the copies should be stored in a secure environment. Member States should be free to decide, at national level and after discussions with relevant stakeholders, on further specific arrangements for retaining the copies, including the ability to appoint trusted bodies for the purpose of storing such copies. In order not to unduly restrict the application of the exception, such arrangements should be proportionate and limited to what is needed for retaining the copies in a safe manner and preventing unauthorised use. Uses for the purpose of scientific research, other than text and data mining, such as scientific peer review and joint research, should remain covered, where applicable, by the exception or limitation provided for in Article 5(3)(a) of Directive 2001/29/EC.

(16) In view of a potentially high number of access requests to, and downloads of, their works or other subject matter, rightholders should be allowed to apply measures when there is a risk that the security and integrity of their systems or databases could be jeopardised. Such measures could, for example, be used to ensure that only persons having lawful access to their data can access them, including through IP address validation or user authentication. Those measures should remain proportionate to the risks involved, and should not exceed what is necessary to pursue the objective of ensuring the security and integrity of the system and should not undermine the effective application of the exception.

(17) In view of the nature and scope of the exception, which is limited to entities carrying out scientific research, any potential harm created to rightholders through this exception would be minimal. Member States should, therefore, not provide for compensation for rightholders as regards uses under the text and data mining exceptions introduced by this Directive.

(18) In addition to their significance in the context of scientific research, text and data mining techniques are widely used both by private and public entities to analyse large amounts of data in different areas of life and for various purposes, including for government services, complex business decisions and the development of new applications or technologies. Rightholders should remain able to license the uses of their works or other subject matter falling outside the scope of the mandatory exception provided for in this Directive for text and data mining for the purposes of scientific research and of the existing exceptions and limitations provided for in Directive 2001/29/EC. At the same time, consideration should be given to the fact that users of text and data mining could be faced with legal uncertainty as to whether reproductions and extractions made for the purposes of text and data mining can be carried out on lawfully accessed works or other subject matter, in particular when the reproductions or extractions made for the purposes of the technical process do not fulfil all the conditions of the existing exception for temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC.

In order to provide for more legal certainty in such cases and to encourage innovation also in the private sector, this Directive should provide, under certain conditions, for an exception or limitation for reproductions and extractions of works or other subject matter, for the purposes of text and data mining, and allow the copies made to be retained for as long as is necessary for those text and data mining purposes.

This exception or limitation should only apply where the work or other subject matter is accessed lawfully by the

beneficiary, including when it has been made available to the public online, and insofar as the rightholders have

not reserved in an appropriate manner the rights to make reproductions and extractions for text and data

mining. In the case of content that has been made publicly available online, it should only be considered

appropriate to reserve those rights by the use of machine-readable means, including metadata and terms and conditions of a website or a service. Other uses should not be affected by the reservation of rights for the purposes of text and data mining. In other cases, it can be appropriate to reserve the rights by other means, such as contractual agreements or a unilateral declaration. Rightholders should be able to apply measures to ensure that their reservations in this regard are respected. This exception or limitation should leave intact the mandatory exception for text and data mining for scientific research purposes provided for in this Directive, as well as the existing exception for temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC.

(19) Article 5(3)(a) of Directive 2001/29/EC allows Member States to introduce an exception or limitation to the rights of reproduction, communication to the public and making available to the public of works or other subject matter in such a way that members of the public may access them from a place and a time individually chosen by them, for the sole purpose of illustration for teaching. In addition, Articles 6(2)(b) and 9(b) of Directive 96/9/EC permit the use of a database and the extraction of a substantial part of its contents for the purpose of illustration for teaching. The scope of those exceptions or limitations as they apply to digital uses is unclear. In addition, there is a lack of clarity as to whether those exceptions or limitations would apply where teaching is provided online and at a distance. Moreover, the existing legal framework does not provide for a cross-border effect. This situation could hamper the development of digitally supported teaching activities and distance learning. Therefore, the introduction of a new mandatory exception or limitation is necessary to ensure that educational establishments benefit from full legal certainty when using works or other subject matter in digital teaching activities, including online and across borders.

(20) While distance learning and cross-border education programmes are mostly developed at higher education level, digital tools and resources are increasingly used at all education levels, in particular to improve and enrich the learning experience. The exception or limitation provided for in this Directive should, therefore, benefit all educational establishments recognised by a Member State, including those involved in primary, secondary, vocational and higher education. It should apply only to the extent that the uses are justified by the non-commercial purpose of the particular teaching activity. The organisational structure and the means of funding of an educational establishment should not be the decisive factors in determining whether the activity is non-commercial in nature.

(21) The exception or limitation provided for in this Directive for the sole purpose of illustration for teaching should be understood as covering digital uses of works or other subject matter to support, enrich or complement the teaching, including learning activities. The distribution of software allowed under that exception or limitation should be limited to digital transmission of software. In most cases, the concept of illustration would, therefore, imply the use only of parts or extracts of works, which should not substitute for the purchase of materials primarily intended for the educational market. When implementing the exception or limitation, Member States should remain free to specify, for the different types of works or other subject matter, in a balanced manner, the proportion of a work or other subject matter that can be used for the sole purpose of illustration for teaching.

Uses allowed under the exception or limitation should be understood to cover the specific accessibility needs of persons with a disability in the context of illustration for teaching.

(22) The use of works or other subject matter under the exception or limitation for the sole purpose of illustration for

teaching provided for in this Directive should only take place in the context of teaching and learning activities

carried out under the responsibility of educational establishments, including during examinations or teaching

activities that take place outside the premises of educational establishments, for example in a museum, library or

another cultural heritage institution, and should be limited to what is necessary for the purpose of such

activities. The exception or limitation should cover both uses of works or other subject matter made in the

classroom or in other venues through digital means, for example electronic whiteboards or digital devices which

might be connected to the internet, as well as uses made at a distance through secure electronic environments,

such as in the context of online courses or access to teaching material complementing a given course. Secure

electronic environments should be understood as digital teaching and learning environments access to which is

limited to an educational establishment's teaching staff and to pupils or students enrolled in a study programme,

in particular through appropriate authentication procedures including password-based authentication.

(23) Different arrangements, based on the implementation of the exception or limitation provided for in Directive 2001/29/EC or on licensing agreements covering further uses, are in place in a number of Member States in order to facilitate educational uses of works and other subject matter. Such arrangements have usually been developed taking account of the needs of educational establishments and of different levels of education. While it is essential to harmonise the scope of the new mandatory exception or limitation in relation to digital uses and cross-border teaching activities, the arrangements for implementation can vary from one Member State to another, to the extent that they do not hamper the effective application of the exception or limitation or cross-border uses. Member States should, for example, remain free to require that the use of works or other subject matter respect the moral rights of authors and performers. This should allow Member States to build on the existing arrangements concluded at national level. In particular, Member States could decide to subject the application of the exception or limitation, fully or partially, to the availability of suitable licences, covering at least the same uses as those allowed under the exception or limitation. Member States should ensure that where licences cover only partially the uses allowed under the exception or limitation, all the other uses remain subject to the exception or limitation.

Member States could, for example, use this mechanism to give precedence to licences for material that is primarily intended for the educational market or licences for sheet music. In order to avoid that subjecting the application of the exception to the availability of licences results in legal uncertainty or an administrative burden for educational establishments, Member States adopting such an approach should take concrete measures to ensure that licensing schemes allowing digital uses of works or other subject matter for the purpose of illustration for teaching are easily available, and that educational establishments are aware of the existence of such licensing schemes. Such licensing schemes should meet the needs of educational establishments. Information tools aimed at ensuring that existing licensing schemes are visible could also be developed. Such schemes could, for example, be based on collective licensing or on extended collective licensing, in order to avoid educational establishments having to negotiate individually with rightholders. In order to guarantee legal certainty, Member States should specify under which conditions an educational establishment can use protected works or other subject matter under that exception and, conversely, when it should act under a licensing scheme.

(24) Member States should remain free to provide that rightholders receive fair compensation for the digital uses of their works or other subject matter under the exception or limitation provided for in this Directive for illustration for teaching. In setting the level of fair compensation, due account should be taken, inter alia, of Member States' educational objectives and of the harm to rightholders. Member States that decide to provide for fair compensation should encourage the use of systems that do not create an administrative burden for educational establishments.

(25) Cultural heritage institutions are engaged in the preservation of their collections for future generations. An act of preservation of a work or other subject matter in the collection of a cultural heritage institution might require a reproduction and consequently require the authorisation of the relevant rightholders. Digital technologies offer new ways of preserving the heritage contained in those collections but they also create new challenges. In view of those new challenges, it is necessary to adapt the existing legal framework by providing for a mandatory exception to the right of reproduction in order to allow such acts of preservation by such institutions.

(26) The existence of different approaches in the Member States with regard to acts of reproduction for preservation by cultural heritage institutions hampers cross-border cooperation, the sharing of means of preservation and the establishment of cross-border preservation networks in the internal market by such institutions, leading to an inefficient use of resources. That can have a negative impact on the preservation of cultural heritage.

(27) Member States should, therefore, be required to provide for an exception to permit cultural heritage institutions

to reproduce works and other subject matter permanently in their collections for preservation purposes, for

example to address technological obsolescence or the degradation of original supports or to insure such works

and other subject matter. Such an exception should allow the making of copies by the appropriate preservation

tool, means or technology, in any format or medium, in the required number, at any point in the life of a work

or other subject matter and to the extent required for preservation purposes. Acts of reproduction undertaken by

cultural heritage institutions for purposes other than the preservation of works and other subject matter in their permanent collections should remain subject to the authorisation of rightholders, unless permitted by other exceptions or limitations provided for in Union law.

(28) Cultural heritage institutions do not necessarily have the technical means or expertise to undertake the acts required to preserve their collections themselves, particularly in the digital environment, and might, therefore, have recourse to the assistance of other cultural institutions and other third parties for that purpose. Under the exception for preservation purposes provided for by this Directive, cultural heritage institutions should be allowed to rely on third parties acting on their behalf and under their responsibility, including those that are based in other Member States, for the making of copies.

(29) For the purposes of this Directive, works and other subject matter should be considered to be permanently in the collection of a cultural heritage institution when copies of such works or other subject matter are owned or permanently held by that institution, for example as a result of a transfer of ownership or a licence agreement, legal deposit obligations or permanent custody arrangements.

(30) Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of works or other subject matter that are considered to be out of commerce for the purposes of this Directive. However, the particular characteristics of the collections of out-of-commerce works or other subject matter, together with the amount of works and other subject matter involved in mass digitisation projects, mean that obtaining the prior authorisation of the individual rightholders can be very difficult. This can be due, for example, to the age of the works or other subject matter, their limited commercial value or the fact that they were never intended for commercial use or that they have never been exploited commercially. It is therefore necessary to provide for measures to facilitate certain uses of out-of-commerce works or other subject matter that are permanently in the collections of cultural heritage institutions.

(31) All Member States should have legal mechanisms in place allowing licences issued by relevant and sufficiently representative collective management organisations to cultural heritage institutions, for certain uses of out-of- commerce works or other subject matter, to also apply to the rights of rightholders that have not mandated a representative collective management organisation in that regard. It should be possible, pursuant to this Directive, for such licences to cover all Member States.

(32) The provisions on collective licensing of out-of-commerce works or other subject matter introduced by this Directive might not provide a solution for all cases in which cultural heritage institutions encounter difficulties in obtaining all the necessary authorisations from rightholders for the use of such out-of-commerce works or other subject matter. That could be the case for example, where there is no practice of collective management of rights for a certain type of work or other subject matter or where the relevant collective management organisation is not sufficiently representative for the category of the rightholders and of the rights concerned. In such particular instances, it should be possible for cultural heritage institutions to make out-of-commerce works or other subject matter that are permanently in their collection available online in all Member States under a harmonised exception or limitation to copyright and related rights. It is important that uses under such exception or limitation only take place when certain conditions, in particular as regards the availability of licensing solutions, are fulfilled. A lack of agreement on the conditions of the licence should not be interpreted as a lack of availability of licensing solutions.

(33) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of licensing mechanism, such as extended collective licensing or presumptions of representation, that they put in place for the use of out-of-commerce works or other subject matter by cultural heritage institutions, in accordance with their legal traditions, practices or circumstances. Member States should also have flexibility in determining what the requirements for collective management organisations to be sufficiently rep­

resentative are, as long as that determination is based on a significant number of rightholders in the relevant type

of works or other subject matter having given a mandate allowing the licensing of the relevant type of use.

Member States should be free to establish specific rules applicable to cases in which more than one collective management organisation is representative for the relevant works or other subject matter, requiring for example joint licences or an agreement between the relevant organisations.

(34) For the purpose of those licensing mechanisms, a rigorous and well-functioning collective management system is important. Directive 2014/26/EU provides for such a system and that system includes in particular rules on good governance, transparency and reporting, as well as the regular, diligent and accurate distribution and payment of amounts due to individual rightholders.

(35) Appropriate safeguards should be available for all rightholders, who should be given the opportunity of excluding the application of the licensing mechanisms and of the exception or limitation, introduced by this Directive for the use of out-of-commerce works or other subject matter, in relation to all their works or other subject matter, in relation to all licences or all uses under the exception or limitation, in relation to particular works or other subject matter, or in relation to particular licences or uses under the exception or limitation, at any time before or during the term of the licence or before or during the use under the exception or limitation. Conditions governing those licensing mechanisms should not affect their practical relevance for cultural heritage institutions. It is important that, where a rightholder excludes the application of such mechanisms or of such exception or limitation to one or more works or other subject matter, any ongoing uses are terminated within a reasonable period, and, where they take place under a collective licence, that the collective management organisation once informed ceases to issue licences covering the uses concerned. Such exclusion by rightholders should not affect their claims to remuneration for the actual use of the work or other subject matter under the licence.

(36) This Directive does not affect the ability of Member States to decide who is to have legal responsibility as regards the compliance of the licensing of out-of-commerce works or other subject matter, and of their use, with the conditions set out in this Directive, and as regards the compliance of the parties concerned with the terms of those licences.

(37) Considering the variety of works and other subject matter in the collections of cultural heritage institutions, it is important that the licensing mechanisms and the exception or limitation provided for by this Directive are available and can be used in practice for different types of works and other subject matter, including photographs, software, phonograms, audiovisual works and unique works of art, including where they have never been commercially available. Never-in-commerce works can include posters, leaflets, trench journals or amateur audiovisual works, but also unpublished works or other subject matter, without prejudice to other applicable legal constraints, such as national rules on moral rights. When a work or other subject matter is available in any of its different versions, such as subsequent editions of literary works and alternate cuts of cinematographic works, or in any of its different manifestations, such as digital and printed formats of the same work, that work or other subject matter should not be considered out of commerce. Conversely, the commercial availability of adaptations, including other language versions or audiovisual adaptations of a literary work, should not preclude a work or other subject matter from being deemed to be out of commerce in a given language. In order to reflect the specificities of different types of works and other subject matter as regards modes of publication and distribution, and to facilitate the usability of those mechanisms, specific requirements and procedures might have to be established for the practical application of those licensing mechanisms, such as a requirement for a certain time period to have elapsed since the work or other subject matter was first commercially available. It is appropriate that Member States consult rightholders, cultural heritage institutions and collective management organisations when establishing such requirements and procedures.

(38) When determining whether works or other subject matter are out of commerce, a reasonable effort should be

required to assess their availability to the public in the customary channels of commerce, taking into account the

characteristics of the particular work or other subject matter or of the particular set of works or other subject

matter. Member States should be free to determine the allocation of responsibilities for making that reasonable

effort. The reasonable effort should not have to involve repeated action over time but it should nevertheless

involve taking account of any easily accessible evidence of upcoming availability of works or other subject matter

in the customary channels of commerce. A work-by-work assessment should only be required where that is

considered reasonable in view of the availability of relevant information, the likelihood of commercial availability

and the expected transaction cost. Verification of availability of a work or other subject matter should normally take place in the Member State where the cultural heritage institution is established, unless verification across borders is considered reasonable, for example in cases where there is easily available information that a literary work was first published in a given language version in another Member State. In many cases, the out-of- commerce status of a set of works or other subject matter could be determined through a proportionate mechanism, such as sampling. The limited availability of a work or other subject matter, such as its availability in second-hand shops, or the theoretical possibility that a licence for a work or other subject matter could be obtained should not be considered as availability to the public in the customary channels of commerce.

(39) For reasons of international comity, the licensing mechanism and the exception or limitation provided for in this Directive for the digitisation and dissemination of out-of-commerce works or other subject matter should not apply to sets of out-of-commerce works or other subject matter where there is evidence available to presume that they predominantly consist of works or other subject matter of third countries, unless the collective management organisation concerned is sufficiently representative for that third country, for example via a representation agreement. That assessment could be based on the evidence available following the making of the reasonable effort to determine whether the works or other subject matter are out of commerce, without the need to search for further evidence. A work-by-work assessment of the origin of out-of-commerce works or other subject matter should only be required insofar as it is also required for making the reasonable effort to determine whether they are commercially available.

(40) Contracting cultural heritage institutions and collective management organisations should remain free to agree on the territorial scope of licences, including the option of covering all Member States, the licence fee and the uses allowed. Uses covered by such licences should not be for profit-making purposes, including where copies are distributed by the cultural heritage institution, such as in the case of promotional material about an exhibition.

At the same time, given that the digitisation of the collections of cultural heritage institutions can entail significant investments, any licences granted under the mechanism provided for in this Directive should not prevent cultural heritage institutions from covering the costs of the licence and the costs of digitising and disseminating the works or other subject matter covered by the licence.

(41) Information regarding the ongoing and future use of out-of-commerce works and other subject matter by cultural heritage institutions on the basis of this Directive and the arrangements in place for all rightholders to exclude the application of licences or of the exception or limitation to their works or other subject matter should be adequately publicised both before and during the use under a licence or under the exception or limitation, as appropriate. Such publicising is particularly important when uses take place across borders in the internal market. It is therefore appropriate to provide for the creation of a single publicly accessible online portal for the Union in order to make such information available to the public for a reasonable period of time before the use takes place. Such portal should make it easier for rightholders to exclude the application of licences or of the exception or limitation to their works or other subject matter. Under Regulation (EU) No 386/2012 of the European Parliament and of the Council (

), the European Union Intellectual Property Office is entrusted with certain tasks and activities, financed by making use of its own budgetary means and aimed at facilitating and supporting the activities of national authorities, the private sector and Union institutions in the fight against, including the prevention of, infringement of intellectual property rights. It is therefore appropriate to rely on that Office to establish and manage the portal making such information available.

In addition to making the information available through the portal, further appropriate publicity measures might need to be taken on a case-by-case basis in order to increase the awareness in that regard of the rightholders concerned, for example through the use of additional channels of communication to reach a wider public. The necessity, the nature and the geographic scope of the additional publicity measures should depend on the charac­

teristics of the relevant out-of-commerce works or other subject matter, the terms of the licences or the type of use under the exception or limitation, and the existing practices in Member States. Publicity measures should be effective without the need to inform each rightholder individually.

(

) Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for

Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights,

including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual

Property Rights (OJ L 129, 16.5.2012, p. 1).

(42) In order to ensure that the licensing mechanisms established by this Directive for out-of-commerce works or other subject matter are relevant and function properly, that rightholders are adequately protected, that licences are properly publicised and that legal certainty is provided with regard to the representativeness of collective management organisations and the categorisation of works, Member States should foster sector-specific stakeholder dialogue.

(43) The measures provided for in this Directive to facilitate the collective licensing of rights in out-of-commerce works or other subject matter that are permanently in the collections of cultural heritage institutions should be without prejudice to the use of such works or other subject matter under exceptions or limitations provided for in Union law, or under other licences with an extended effect, where such licensing is not based on the out-of-commerce status of the covered works or other subject matter. Those measures should also be without prejudice to national mechanisms for the use of out-of-commerce works or other subject matter based on licences between collective management organisations and users other than cultural heritage institutions.

(44) Mechanisms of collective licensing with an extended effect allow a collective management organisation to offer licences as a collective licensing body on behalf of rightholders, irrespective of whether they have authorised the organisation to do so. Systems built on mechanisms such as extended collective licensing, legal mandates or presumptions of representation, are a well-established practice in several Member States and can be used in different areas. A functioning copyright framework that works for all parties requires the availability of propor­

tionate, legal mechanisms for the licensing of works or other subject matter. Member States should, therefore, be able to rely on solutions allowing collective management organisations to offer licences covering a potentially large number of works or other subject matter for certain types of use, and to distribute the revenue resulting from such licences to rightholders, in accordance with Directive 2014/26/EU.

(45) Given the nature of some uses, together with the usually large amount of works or other subject matter involved, the transaction cost of individual rights clearance with every rightholder concerned is prohibitively high. As a result, it is unlikely that, without effective collective licensing mechanisms, all the transactions in the areas concerned that are required to enable the use of such works or other subject matter would take place. Extended collective licensing by collective management organisations and similar mechanisms can make it possible to conclude agreements in those areas where collective licensing based on an authorisation by rightholders does not provide an exhaustive solution for covering all works or other subject matter to be used. Such mechanisms complement collective management of rights based on individual authorisation by rightholders, by providing full legal certainty to users in certain cases. At the same time, they provide an opportunity to rightholders to benefit from the legitimate use of their works.

(46) Given the increasing importance of the ability to offer flexible licensing schemes in the digital age, and the increasing use of such schemes, Member States should be able to provide for licensing mechanisms which permit collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation concerned to do so. Member States should have the ability to maintain and introduce such mechanisms in accordance with their national traditions, practices or circumstances, subject to the safeguards provided for in this Directive and in compliance with Union law and the international obligations of the Union. Such mechanisms should only have effect in the territory of the Member State concerned, unless otherwise provided for in Union law. Member States should have flexibility in choosing the specific type of mechanism allowing licences for works or other subject matter to extend to the rights of rightholders that have not authorised the organisation that concludes the agreement, provided that such mechanism is in compliance with Union law, including with the rules on collective management of rights provided for in Directive 2014/26/EU. In particular, such mechanisms should also ensure that Article 7 of Directive 2014/26/EU applies to rightholders that are not members of the organisation that concludes the agreement. Such mechanisms could include extended collective licensing, legal mandates and presumptions of representation. The provisions of this Directive concerning collective licensing should not affect the existing ability of Member States to apply mandatory collective management of rights or other collective licensing mechanisms with an extended effect, such as that included in Article 3 of Council Directive 93/83/EEC (

).

(

) Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to

copyright applicable to satellite broadcasting and cable retransmission (OJ L 248, 6.10.1993, p. 15).

(47) It is important that mechanisms of collective licensing with an extended effect are only applied in well-defined areas of use, in which obtaining authorisation from rightholders on an individual basis is typically onerous and impractical to a degree that makes the required licensing transaction, namely one involving a licence that covers all rightholders concerned, unlikely to occur due to the nature of the use or of the types of works or other subject matter concerned. Such mechanisms should be based on objective, transparent and non-discriminatory criteria as regards the treatment of rightholders, including rightholders who are not members of the collective management organisation. In particular, the mere fact that the rightholders affected are not nationals or residents of, or established in, the Member State of the user who is seeking a licence, should not be in itself a reason to consider the clearance of rights to be so onerous and impractical as to justify the use of such mechanisms. It is equally important that the licensed use neither affect adversely the economic value of the relevant rights nor deprive rightholders of significant commercial benefits.

(48) Member States should ensure that appropriate safeguards are in place to protect the legitimate interests of rightholders that have not mandated the organisation offering the licence and that those safeguards apply in a non-discriminatory manner. Specifically, in order to justify the extended effect of the mechanisms, such an organisation should be, on the basis of authorisations from rightholders, sufficiently representative of the types of works or other subject matter and of the rights which are the subject of the licence. Member States should determine the requirements to be satisfied for those organisations to be considered sufficiently representative, taking into account the category of rights managed by the organisation, the ability of the organisation to manage the rights effectively, the creative sector in which it operates, and whether the organisation covers a significant number of rightholders in the relevant type of works or other subject matter who have given a mandate allowing the licensing of the relevant type of use, in accordance with Directive 2014/26/EU. To provide legal certainty and ensure that there is confidence in the mechanisms, Member States should be allowed to decide who is to have legal responsibility as regards uses authorised by the licence agreement. Equal treatment should be guaranteed to all rightholders whose works are exploited under the licence, including in particular as regards access to information on the licensing and the distribution of remuneration. Publicity measures should be effective throughout the duration of the licence and should not involve imposing a disproportionate administrative burden on users, collective management organisations or rightholders, and without the need to inform each rightholder individually.

In order to ensure that rightholders can easily regain control of their works, and prevent any uses of their works that would be prejudicial to their interests, it is essential that rightholders be given an effective opportunity to exclude the application of such mechanisms to their works or other subject matter for all uses and works or other subject matter, or for specific uses and works or other subject matter, including before the conclusion of a licence and during the term of the licence. In such cases, any ongoing use should be terminated within a reasonable period. Such exclusion by rightholders should not affect their claims for remuneration for the actual use of the work or other subject matter under the licence. Member States should also be able to decide that additional measures are appropriate to protect rightholders. Such additional measures could include, for example, encouraging the exchange of information among collective management organisations and other interested parties across the Union to raise awareness about such mechanisms and the option available to rightholders to exclude their works or other subject matter from those mechanisms.

(49) Member States should ensure that the purpose and scope of any licence granted as a result of mechanisms of collective licensing with an extended effect, as well as the possible uses, should always be carefully and clearly defined in law or, if the underlying law is a general provision, in the licensing practices applied as a result of such general provisions, or in the licences granted. The ability to operate a licence under such mechanisms should also be limited to collective management organisations that are subject to national law implementing Directive 2014/26/EU.

(50) Given the different traditions and experiences in relation to mechanisms of collective licensing with an extended

effect across Member States, and their applicability to rightholders irrespective of their nationality or their

Member State of residence, it is important to ensure that there is transparency and dialogue at Union level about

the practical functioning of such mechanisms, including as regards the effectiveness of safeguards for

rightholders, the usability of such mechanisms, their effect on rightholders who are not members of the collective

management organisation, or on rightholders who are nationals of, or resident in, another Member State, and the

impact on the cross-border provision of services, including the potential need to lay down rules to give such mechanisms cross-border effect within the internal market. To ensure transparency, information about the use of such mechanisms under this Directive should be regularly published by the Commission. Member States that have introduced such mechanisms should, therefore, inform the Commission about relevant national provisions and their application in practice, including the scope and types of licensing introduced on the basis of general provisions, the scale of licensing and the collective management organisations involved. Such information should be discussed with Member States in the contact committee established in Article 12(3) of Directive 2001/29/EC.

The Commission should publish a report on the use of such mechanisms in the Union and their impact on licensing and rightholders, on the dissemination of cultural content and on the cross-border provision of services in the area of collective management of copyright and related rights, as well as on the impact on competition.

(51) Video-on-demand services have the potential to play a decisive role in the dissemination of audiovisual works across the Union. However, the availability of such works, in particular European works, on video-on-demand services remains limited. Agreements on the online exploitation of such works can be difficult to conclude due to issues related to the licensing of rights. Such issues could, for instance, arise when the holder of the rights for a given territory has a low economic incentive to exploit a work online and does not license or holds back the online rights, which can lead to audiovisual works being unavailable on video-on-demand services. Other issues could relate to windows of exploitation.

(52) To facilitate the licensing of rights in audiovisual works to video-on-demand services, Member States should be required to provide for a negotiation mechanism allowing parties willing to conclude an agreement to rely on the assistance of an impartial body or of one or more mediators. For that purpose, Member States should be allowed either to establish a new body or rely on an existing one that fulfils the conditions established by this Directive.

Member States should be able to designate one or more competent bodies or mediators. The body or the mediators should meet with the parties and help with the negotiations by providing professional, impartial and external advice. Where a negotiation involves parties from different Member States and where those parties decide to rely on the negotiation mechanism, the parties should agree beforehand on the competent Member State. The body or the mediators could meet with the parties to facilitate the start of negotiations or in the course of the negotiations to facilitate the conclusion of an agreement. Participation in that negotiation mechanism and the subsequent conclusion of agreements should be voluntary and should not affect the parties' contractual freedom. Member States should be free to decide on the specific functioning of the negotiation mechanism, including the timing and duration of the assistance to negotiations and the bearing of the costs. Member States should ensure that administrative and financial burdens remain proportionate to guarantee the efficiency of the negotiation mechanism. Without it being an obligation for them, Member States should encourage dialogue between representative organisations.

(53) The expiry of the term of protection of a work entails the entry of that work into the public domain and the expiry of the rights that Union copyright law provides in relation to that work. In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage. In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of such reproductions give rise to legal uncertainty and affect the cross-border dissemination of works of visual arts in the public domain.

Certain reproductions of works of visual arts in the public domain should, therefore, not be protected by copyright or related rights. All of that should not prevent cultural heritage institutions from selling reproductions, such as postcards.

(54) A free and pluralist press is essential to ensure quality journalism and citizens' access to information. It provides

a fundamental contribution to public debate and the proper functioning of a democratic society. The wide

availability of press publications online has given rise to the emergence of new online services, such as news

aggregators or media monitoring services, for which the reuse of press publications constitutes an important part

of their business models and a source of revenue. Publishers of press publications are facing problems in

licensing the online use of their publications to the providers of those kinds of services, making it more difficult for them to recoup their investments. In the absence of recognition of publishers of press publications as rightholders, the licensing and enforcement of rights in press publications regarding online uses by information society service providers in the digital environment are often complex and inefficient.

(55) The organisational and financial contribution of publishers in producing press publications needs to be recognised and further encouraged to ensure the sustainability of the publishing industry and thereby foster the availability of reliable information. It is therefore necessary to provide at Union level for harmonised legal protection for press publications in respect of online uses by information society service providers, which leaves the existing copyright rules in Union law applicable to private or non-commercial uses of press publications by individual users unaffected, including where such users share press publications online. Such protection should be effectively guaranteed through the introduction, in Union law, of rights related to copyright for the reproduction and making available to the public of press publications of publishers established in a Member State in respect of online uses by information society service providers within the meaning of Directive (EU) 2015/1535 of the European Parliament and of the Council (

). The legal protection for press publications provided for by this Directive should benefit publishers that are established in a Member State and have their registered office, central administration or principal place of business within the Union.

The concept of publisher of press publications should be understood as covering service providers, such as news publishers or news agencies, when they publish press publications within the meaning of this Directive.

(56) For the purposes of this Directive, it is necessary to define the concept of ‘press publication’ so that it only covers journalistic publications, published in any media, including on paper, in the context of an economic activity that constitutes a provision of services under Union law. The press publications that should be covered include, for instance, daily newspapers, weekly or monthly magazines of general or special interest, including subscription-based magazines, and news websites. Press publications contain mostly literary works, but increasingly include other types of works and other subject matter, in particular photographs and videos. Periodical publications published for scientific or academic purposes, such as scientific journals, should not be covered by the protection granted to press publications under this Directive. Neither should that protection apply to websites, such as blogs, that provide information as part of an activity that is not carried out under the initiative, editorial responsibility and control of a service provider, such as a news publisher.

(57) The rights granted to the publishers of press publications under this Directive should have the same scope as the rights of reproduction and making available to the public provided for in Directive 2001/29/EC, insofar as online uses by information society service providers are concerned. The rights granted to publishers of press publications should not extend to acts of hyperlinking. They should also not extend to mere facts reported in press publications. The rights granted to publishers of press publications under this Directive should also be subject to the same provisions on exceptions and limitations as those applicable to the rights provided for in Directive 2001/29/EC, including the exception in the case of quotations for purposes such as criticism or review provided for in Article 5(3)(d) of that Directive.

(58) The use of press publications by information society service providers can consist of the use of entire publications or articles but also of parts of press publications. Such uses of parts of press publications have also gained economic relevance. At the same time, the use of individual words or very short extracts of press publications by information society service providers may not undermine the investments made by publishers of press publications in the production of content. Therefore, it is appropriate to provide that the use of individual words or very short extracts of press publications should not fall within the scope of the rights provided for in this Directive. Taking into account the massive aggregation and use of press publications by information society service providers, it is important that the exclusion of very short extracts be interpreted in such a way as not to affect the effectiveness of the rights provided for in this Directive.

(

) Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the

provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).